On December 16, 2014, the Court of Appeals of Georgia decided Brown v. State [i], in which the court applied the recent United States Supreme Court ruling in Riley v. California [ii] to suppress evidence obtained in a cell phone search. The facts of Brown, taken directly from the case, are as follows:
[T]he evidence shows that at 2:00 a.m. on December 30, 2012, Brown drove his vehicle into the path of oncoming traffic and forced an unmarked police car off the road. The Athens-Clarke County police officer stopped Brown’s vehicle and began a DUI investigation. As the officer questioned Brown, he observed that Brown smelled of alcohol, had slurred speech, and had bloodshot, glassy eyes. Brown admitted to recently drinking alcohol. After a second officer arrived in a patrol car to assist with the traffic stop, the first officer arrested Brown for DUI and confined him in the back of the patrol car.
The second officer sat in the front seat of the patrol car, while the arresting officer continued his investigation. Brown’s cell phone, which the officer had on the front seat beside him, rang several times. Brown asked the officer to answer the phone and talk to his father, but the officer simply muted the phone each time it rang. The last time Brown’s phone rang, the officer muted it and then opened the pictures application on the phone. The officer decided “to look through the phone to see if there was any evidence . . . that would substantiate the stop or [show Brown] previously drinking before the stop.” The officer began scrolling through the photographs stored on the phone and went through ten to twelve images. After the first couple of pictures, there was a picture of a nude adult woman, and within the next few pictures the officer saw images that appeared to be child pornography.
At the hearing on Brown’s motion to suppress, the officer explained his reason for opening the pictures application as follows. He testified that, in his experience, some people who are out drinking and partying use their phones to capture the moment or send text messages about what they are doing. He testified that, because of this, phones have yielded evidence in cases involving a minor in possession of alcohol. In addition, he testified that phones have contained evidence of suspects possessing guns or gang-related paraphernalia. On cross-examination, the officer admitted that he had never looked for or found evidence of DUI on an arrestee’s phone. Aside from his “general experience as an officer,” the officer testified he did not have “any [particular] reason to believe” that Brown had evidence on his cell phone that he had committed the offense of driving under the influence of alcohol. He testified specifically that he “never saw [Brown] text on his cell phone”; “never saw him input data on his cell phone”; “never saw him take a picture” with his cell phone; and “never received any intelligence” from anyone else that there was evidence of DUI on Brown’s cell phone.
Based solely on information the officer provided about images he observed on Brown’s phone, a detective applied for and obtained a search warrant to look for evidence of sexual exploitation of a child on the phone. A cyber-crime and digital forensics examiner executed the search warrant and found the images that formed the basis for the 12 counts of sexual exploitation of a child. Subsequent searches of the phone with new forensic software yielded additional incriminating images and messages. [iii]
The trial court denied Brown’s motion to suppress the evidence obtained during the warrantless search of the cell phone and during the subsequent search warrant that was founded upon the images seen during the warrantless search. Brown appealed the denial of the motion to suppress to the Court of Appeals of Georgia.
The issue before the court of appeals was whether the officer’s warrantless search incident to arrest of the cellular phone was lawful under the Fourth Amendment.
Brown argued that based on the 2014 United States Supreme Court’s holding in Riley v. California, the warrantless search incident to arrest was not lawful. Discussing Riley, the Georgia Court of Appeals stated:
As the Supreme Court of the United States recently declared, “the search incident to arrest exception does not apply to cell phones[;] . . . before searching a cell phone seized incident to an arrest . . . [a law enforcement officer must] get a warrant.” Riley v. California, _ U. S. _ (IV) (134 SCt 2473, 189 LE2d 430) (2014). This is because:
[m]odern cell phones are not just another technological convenience. With all they contain and all they may reveal, they hold for many Americans the privacies of life[.] The fact that technology now allows an individual to carry such information in his hand does not make the information any less worthy of the protection for which the Founders fought. [iv]
The court of appeals noted that, as also stated by the Supreme Court, not every warrantless search of a cell phone will be unlawful, such as one that takes place pursuant to exigent circumstances. Regarding the exigent circumstance exception, the court stated:
this exigent circumstances exception requires a court to examine the particular facts of the case to determine whether an emergency justified a warrantless search under the circumstances. Id. “Such exigencies could include the need to prevent the imminent destruction of evidence . . . , to pursue a fleeing suspect, and to assist persons who are seriously injured or are threatened with imminent injury.” [v]
However, the exigent circumstance exception was not found to be applicable in this case.
As such, the initial search incident to arrest of the cell phone was not lawful under the Fourth Amendment. Because evidence located during the original search incident to arrest is what the detective used as the basis of probable cause for the search warrant, the court of appeals held that the evidence obtained during the search pursuant to the warrant must also be suppressed.
Note: Court holdings can vary significantly between jurisdictions. As such, it is advisable to seek the advice of a local prosecutor or legal adviser regarding questions on specific cases. This article is not intended to constitute legal advice on a specific case.
[ii] _ U. S. _ (IV) (134 SCt 2473, 189 LE2d 430) (2014)
[iii] Brown v. State, A14A2284
[iv] Id. (quoting Riley v. California, _ U. S. _ (IV) (134 SCt 2473, 189 LE2d 430) (2014))